STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL BUSINESS ) MACHINES CORPORATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-2588BID

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent, )

and )

)

EMC CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 27, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Hume F. Coleman, Esquire

Post Office Drawer 810 Tallahassee, Florida 32302-0810

Daniel W. Schenck, Esquire 4111 Northside Parkway

Atlanta, Georgia 30327

For Respondent: William A. Freider, Esquire

Building E, Suite 200 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

For Intervenor: Terrence J. Russell, Esquire

Post Office Box 1900

Fort Lauderdale, Florida 33302-1900

Margaret-Ray T. Kemper, Esquire

215 South Monroe Street, Suite 815 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether respondent acted fraudulently, arbitrarily, illegally, or dishonestly in proposing to award a contract for DASD drives and controllers to EMC Corporation.

PRELIMINARY STATEMENT

This matter began on May 2, 1994, when petitioner, International Business Machines Corporation, Inc., filed its formal written protest and petition for formal hearing to contest a decision by respondent, Department of Health and Rehabilitative Services, to award a contract for RFP 94-10BB-DSD to intervenor, EMC Corporation. The contract called for the purchase of direct access storage devices and controllers. The protest alleged that the proposal submitted by intervenor was nonresponsive in three respects. On May 26, 1994, petitioner filed an amended formal written protest and petition for hearing in which it contended intervenor's proposal was deficient in a fourth respect.

Authorization to amend the protest was granted at hearing.

The matter was referred by respondent to the Division of Administrative Hearings on May 11, 1994, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 16, 1994, a final hearing was scheduled on May 27, 1994, in Tallahassee, Florida.

At final hearing, petitioner presented the testimony of Michael F. Sheehan, an EMC account executive, Peter A. Danforth, an IBM storage systems marketing advisor, Joy R. Sexton, an IBM client representative, John T. Howard, Jr., an HRS systems programmer III, and Mark A. Hamilton, an HRS systems programmer. In addition, it offered petitioner's exhibits 1, 3, 4, 6-9, 11-15, 18 and 21. All exhibits were received in evidence. Respondent offered respondent's exhibit 1 which was received in evidence. Intervenor presented the testimony of Thomas J. Burns, EMC manager of systems engineering, and Karin L. Morris, HRS systems programmer administrator. Also, it offered intervenor's exhibits 5, 10, 16, 17,

19, 20, 22 and 23. All exhibits were received in evidence.

The transcript of hearing (two volumes) was filed on June 2, 1994.

Proposed findings of fact and conclusions of law were filed by the parties on June 10, 1994. A ruling on each proposed finding of fact is made in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Respondent, Department of Health and Rehabilitative Services (HRS), operates a computer system known as the Florida System (system). That system is used to store and process large quantities of client benefit information. Because of various deficiencies in the system, the 1993 legislature authorized HRS to make an expenditure from other appropriated moneys to enhance the performance of the system and to meet federal certification requirements. HRS was required, however, to execute a contract and encumber the moneys for the new services no later than June 30, 1994, or forfeit the appropriation. This controversy involves a dispute between HRS, intervenor, EMC Corporation (EMC), the vendor ranked first by HRS and selected as the winner of the contract, and

      petitioner, International Business Machines Corporation (IBM), the second ranked vendor. Because of the above time constraints and threatened loss of moneys, HRS has requested that this matter be resolved on an expedited basis so that a final order can be entered and a contract signed by June 30, 1994, the end of the current fiscal year.

      
      

   2. By way of background, on January 14, 1994, HRS issued a request for proposal (RFP) inviting various vendors to submit proposals for providing direct access storage devices (DASD) and controllers for the system. The RFP is more specifically identified as RFP 94-10BB-DSD. HRS structured its request for services as an RFP rather than an invitation to bid because it knew there was more than one product on the market that could meet its requirements, the RFP process gives it more flexibility and would result in a better price, and the RFP process allows vendors more options in providing a solution to a problem.

      
      

   3. As amended, the RFP called for a bidder's conference to be held on February 2, 1994, written proposals to be filed with HRS by 2:00 p.m. on March 14, 1994, and all proposals to be opened the same day. Thereafter, the offers were to be evaluated by a team of HRS employees whose role was to evaluate the various proposals and assign each proposal a score. A selection committee then had the responsibility of preparing a final report and recommendation for the HRS deputy secretary for administration. The authority to make a final decision rested with that individual. HRS originally anticipated a contract start date of April 1, 1994, but later changed this to May 1, 1994. That date is now in suspense pending the outcome of this case.

      
      

   4. Three vendors submitted a total of five proposals in response to the RFP. They included IBM and EMC, both of whom submitted two offers, identified as the IBM-1, IBM-2, EMC-1 and EMC-2 proposals, respectively, and Hitachi Data Systems, who is not a party in this case. After an evaluation of all proposals was conducted by the evaluation team, it recommended that the EMC-2 proposal be selected. This recommendation was accepted by the selection committee, which then submitted a final report and recommendation to the HRS deputy secretary for administration, Lowell Clary. After reviewing the report and recommendation, Clary issued a notice of intent to award the contract to EMC on April 19, 1994. Upon receipt of this advice, IBM timely filed its protest, as amended, alleging that EMC's proposal was deficient in four respects and that its IBM-2 proposal should have been ranked first. Subsequent efforts to informally conciliate the dispute have obviously been unsuccessful.

      
      

2. The Specifications

   
   

   1. HRS currently uses 3390 DASD disc drives on its IBM 9021-900 mainframe computer. By its RFP, HRS seeks to purchase additional disc drives and associated controllers to enhance the system's storage capacity and ability to process the data from storage to the processor. Once installed, these enhancements should significantly improve the response time of the system and complete the financial management section of the child support system. The DASD is a device that stores data or information. The DASD is controlled by a controller, a box containing electrical circuitry that manages the movement of data stored in the DASD between that device and the mainframe computer (CPU) which processes the data. The controllers are attached to the CPU by channels, which are the paths between the storage system and the CPU. Data can be moved through copper or fiberoptic cables (channels), with fiberoptic providing much faster transfer than copper. Finally, the word "cache" is used in computer jargon to describe the storage of data in the controller as opposed to the storage of data in the DASD unit. Data is moved to and from cache through

      sophisticated algorhythms. Because data in cache is stored on computer memory chips, the retrieval of data from cache is substantially faster than the retrieval of data from DASD.

      
      

   2. The specifications for the equipment to be supplied by the vendor are found in paragraphs 1.1 and 1.2 on page 9 of the RFP, as amended. Those paragraphs read in pertinent part as follows:

      
      

      1. Statement of Need

         The Department currently uses 3390 DASD drives on its IBM 9021-900 mainframe computer. The department wishes to purchase two to four 3390-A28 DASD or equivalent and four (4) to eight (8) 3390-B2C DASD or equivalent. In order to support these devices two (2) to three (3) additional

         3990-006 controllers or equivalent will also be purchased. This bid is for new DASD and Controller devices or equivalent hardware.

         
         

         If equivalent hardware is proposed the DASD and Controllers must be capable of being managed by IBM's software, and the SMS software support capabilities must be at the latest release level. Also, the maintenance vendor and the cost of maintenance for a period not less than three years after the warranty must be identified. The DASD Controllers must be capable of containing

         at least one gigabyte of CACHE memory (a minimum of 256 MB of CACHE is required in this proposal). Any Controller/DASD Configuration proposed for these bid requirements must be capable of functioning in ESCON mode.

         
         

      2. Statement of purpose

      The department will purchase the proposed equipment in increments as funds become available. The initial purchase will consist of at least two (2) 3390-A28 DASD or equivalent, at least four (4) 3390-B2C DASD or equivalent and at least two 3390-006 controllers or equivalent. The remaining devices will be purchased as funds become available.

      * * *

      
      

      Equivalent is defined in paragraph JJ. of the definitions section of the RFP as "(c)apable of providing equal or superior performance and having equal or greater capacity." In wording the definition in this manner, HRS intended to give a very broad interpretation to the word "equivalent," and to allow vendors maximum flexibility in providing a solution to HRS's equipment needs.

      Importantly, HRS did not intend to make IBM the sole source for supplying the equipment. Thus, if a vendor could provide equivalency with a single controller and all other specified functionality, that was permissible under the RFP.

   3. Also, paragraph 4.1 of the RFP provides in part that

      
      

      a material deviation may not be waived by the department. A deviation is material if, in the department's sole discretion, the deficient response is not in substantial accord with this Request for Proposal's requirements, provides an advantage to one proposer over other proposers, has a potentially significant effect on the quantity or quality of items proposed, or

      on the cost to the department. Material deviations cannot be waived. (Emphasis in original)

      
      

      This provision is consistent with the requirements of HRS Rule 10-13.012, Florida Administrative Code, which provides that the "Department shall reserve the right to waive minor irregularities in an otherwise valid bid or proposal."

      
      

   4. The statement of need in paragraph 1.1 used IBM nomenclature because that is a common language that HRS personnel use, and it is one that is commonly understood in the computer industry. As noted earlier, however, HRS was simply looking for a solution to its need for more data storage and data transfer capacity, and it was not dictating that the equipment proposed be identical to that described using IBM nomenclature.

      
      

   5. Several other RFP requirements are pertinent to this dispute. First, the RFP required that "(e)ach controller shall support eight (8) channels," or a total of sixteen. This meant that each control unit should have eight-channel capability, or a total of sixteen channel connections. The controller technology also had to be ESCON (enterprise systems connection) capable, that is, capable of using fiberoptic technology (rather than copper cables) in the event HRS later decided to upgrade its equipment. Contrary to IBM's assertion, there was no requirement in the RFP concerning "concurrent I/O's," an acronym for input/output operations. Thus, in order to satisfy the RFP, the unit did not have to have a specified number of channel directors with the ability to make simultaneous data transfers between the storage device and the CPU. In terms of cache capacity, HRS required a storage subsystem having at least 120 gigabytes, with the ability to later upgrade to a maximum capacity of 240 gigabytes. Finally, the successful vendor was required to post a performance bond, and it would not receive any payments under the contract until the equipment was functioning at 99 percent availability for thirty consecutive days within a ninety day period. Otherwise, the equipment would be removed at the firm's expense and the contract terminated.

      
      

3. The EMC-2 and IBM-2 Proposals

   
   

   1. In its EMC-2 proposal, EMC proposed to furnish one Symmetrix 9100-9016 unit at a unit price of $561,000 for a total price of $561,000. This unit combines the DASD and the controller in a single box. It can be configured to function as up to four controllers.

      
      

   2. The unit proposed by EMC provides 136 gigabytes of capacity and can be expanded to provide 272 gigabytes. The unit uses a different architecture than that used by IBM and takes approximately one-sixth of the floor space of the

      proposed IBM units. Thus, it requires less electrical power and produces less heat, thereby reducing the cost of electricity and air-conditioning by 80 percent to 87 percent.

      
      

   3. IBM took a very literal approach to the RFP's Statement of Need and concluded that any equipment proposed as equivalent must be identical to the IBM equipment described in the Statement of Need. Under IBM's construction of the RFP, since the Statement of Need described two IBM 3390-006 controllers, two controllers must be supplied in order to be equivalent. Similarly, since one IBM 3390-006 has capacity for eight concurrent I/Os, IBM erroneously concluded that the RFP required eight concurrent I/Os. While one IBM 3390-006 controller configured with Model 3 DASD as proposed in the IBM-2 proposal can handle 180 gigabytes of capacity and can satisfy the minimum capacity requirements, two IBM 3390-006 controllers were necessary in order to handle the RFP's maximum capacity requirements of 240 gigabytes. Thus, IBM offered equipment with the following characteristics: 8 concurrent I/Os, 16 ESCON channels, and the capacity to handle up to 360 gigabytes.

      
      

4. The Evaluation Process

   
   

   1. In conjunction with this project, HRS established an HRS DASD and Controller Project Team which consisted of an evaluation team and a selection committee. The evaluation team was divided into two segments, a technical evaluation team with five members and a business evaluation team with two members. The selection committee consisted of two members. All team and committee members were HRS employees.

      
      

   2. Prior to the opening of the proposals, all members of the evaluation team were given an evaluation manual to be used in evaluating the responses to the RFP. In addition, on February 21, 1994, all team members were required to attend an "in-depth" training session.

      
      

   3. Ten days after the RFP was released, a bidder's conference was held in Tallahassee. The purpose of the conference was to discuss the contents of the RFP and firms' inquiries and recommended changes. Among other vendors, representatives of IBM and EMC were in attendance. It should be noted that no vendor had previously challenged any part of the specifications within the statutory three day time period for doing so. Firms were also afforded the opportunity to submit written inquiries to HRS to which HRS replied in writing. Three questions were submitted by IBM, all designed to elict an admission from HRS that IBM was the sole source of the equipment. HRS declined to agree with this premise.

      
      

   4. On March 14, 1994, the technical proposals were opened. A determination was first made as to each vendor's compliance with mandatory requirements. In this case, all proposals were found to comply with the mandatory requirements. The proposals were then evaluated on both a technical and business basis. Under the technical evaluation, which consisted of two sections, corporate capabilities and technical approach, each team member scored the proposal using pre-established criteria on eighteen technical criteria and eight corporate criteria. Points ranging from 0 to 4 were assigned for each criterion in descending value based on whether the proposal received a superior, good, acceptable, poor, or no value rating. A maximum of 400 points could be achieved on this part of the evaluation, with 300 available for the technical approach and 100 points available for the corporate capabilities. Each proposal was then assigned final weighted points according to the formulas presented in the RFP. As it turned out, the IBM-1, IBM-2, EMC-1, EMC-2 and Hitachi proposals

      received 395, 396, 356, 338 and 283 points, respectively. It should be noted that during the technical scoring process, each proposal was scored on its own merits and not by comparing one proposal with another, and all technical scoring was completed before the cost proposals were opened.

      
      

   5. Under the business evaluation, the proposals were evaluated on the basis of equipment and maintenance costs. Because cost was a very important factor to HRS, it was allocated 60 percent of the total points. According to the RFP, the vendor submitting the lowest priced proposal would receive 540 points while 60 points would be awarded the vendor proposing the lowest maintenance costs for the first three years of the contract. The higher costing proposals were awarded points pro rata based on an RFP formula. In this case, the EMC-2 proposal carried a price of $561,000, with no maintenance costs for the first three years, as compared to the cost on the IBM-2 proposal of

      $1,148,216, the second ranked offer. Therefore, the EMC-2 proposal received the full 600 points while the IBM-2 offer received only 293 points.

      
      

   6. Based on the above evaluation, which was done in a fair and consistent manner in accordance with the HRS evaluation manual, the final scores were allocated as follows:

      
      

      Proposer Technical Points Cost Points Total Points

      IBM-1	395	242	637
      IBM-2	396	293	689
      EMC-1	356	246	602
      EMC-2	338	600	938
      Hitachi	283	368	651

      
      

      Given these rankings, the selection team issued its final report and recommendation on April 13, 1994, recommending that the EMC-2 proposal be ranked first and that EMC be awarded the contract.

      
      

5. Was EMC's proposal nonresponsive?

1. Initially, because no proof was submitted at hearing as to IBM's claim that EMC did not submit three corporate references who used EMC equipment similar in magnitude and scope to that requested in the RFP, that allegation has been deemed to have been abandoned. Remaining at issue are contentions that

   EMC-2's proposal was nonresponsive in two respects and deficient in one other respect. As to the alleged nonresponsive features of the proposal, IBM claims that (a) EMC-2's proposal contains technology which is not yet available on the market in the time required under the terms of the RFP, and (b) the 9100 model proposed by EMC is not of equal or superior performance or of equal or greater capacity to two IBM 3990-006 controllers. As to the other alleged deficiency, IBM contends that the specifications of the 9100 model vary from the specifications described in the EMC-2 proposal and thus EMC will have an advantage over other proposers if it is allowed to substitute equipment or not meet specifications.

   
   

2. IBM first contends that the EMC-2 proposal contains technology which is not yet available on the market in the time required under the terms of the RFP. In this regard, the evidence shows that EMC introduced a 5500 model in November 1992. That unit uses a large amount of cache and a five and one- quarter inch disk technology. Sometime later, EMC began to develop a new unit with "somewhat less" capacity than the 5500 unit but using a much newer and higher density disc drive in the five and one-quarter inch format with the capability of storing nine gigabytes of capacity. During the preliminary stages

   of the development of the model, EMC referred to it as the "Jaguar," because of its high performance technology. Before publicly marketing the unit, EMC briefly identified the model as the 9100 unit because it had nine gigabyte capacity. Later on, however, EMC elected to place the device within its 5000 series in part to reflect to the industry that the device uses the same technology as EMC's existing 5500 series and in part to avoid confusion with a competitor's recent introduction of a 9000 series machine. Accordingly, the model number was changed to 5200-9 because it had smaller capacity than the existing 5500 model, but used nine gigabyte disc drives. The first 9100/5200 technology was delivered to Delta Airlines on January 10, 1994, and the second and third units were delivered to The Home Depot, Inc. and General Accident Insurance Company of America within the next few months. In April 1994, or after the model was already in use, EMC published a marketing brochure and on May 12, 1994, it offically announced the introduction of the new unit. When the RFP package was prepared, EMC had not yet made a decision to rename the 9100 unit a 5200-9 model, and thus it used the 9100 nomenclature throughout its proposal. Even so, Karin Morris, the HRS systems programmer administrator, established that this type of error (i. e., changes in model numbers) occurs "regularly" on RFP submissions by data processing vendors, and it is of no concern to the agency. Because model 5200 (previously known as 9100) was current technology at the time the EMC-2 proposal was submitted, IBM's contention to the contrary is rejected. It is further found that, for all practical purposes, models 5200 and 9100 are one and the same in that they have the same cache and amount of disc drives, and when EMC referred in its proposal to model 9100, it was referring to what is now known as the model 5200-9. Thus, EMC did not substitute technology after its proposal was opened, nor did it obtain an unfair advantage over the other vendors by making this change. The change in model number was a minor irregularity, and one that could be waived by HRS.

   
   

3. IBM next contends that the EMC-2 proposal contains a material error and that the unit described therein does not meet the RFP specifications. More specifically, in paragraph 4 of Tab 3 of the proposal, EMC gave the following description of the proposed hardware:

   
   

   Within the Symmetrix unit, up to eight (8) control units may be defined to the operations system. In addition, the unit allows up to eight concurrent I/O's. The maximum number of parallel channels is sixteen, or will allow up to thirty two ESCON channels for the unit.

   
   

   In drafting the RFP, an EMC account executive inadvertently described the characteristics of the EMC 5500 model rather than the new 5200 model. At the outset of hearing EMC conceded that the above descriptive language was in error, and that it did not discover the error until it was pointed out by IBM during a deposition taken on May 25, 1994, or just two days prior to hearing.

   The language should have read as follows:

   
   

   Within the Symmetrix unit, up to four (4) control units may be defined to the operations system. In addition, the unit allows up to four (4) concurrent I/O's. The maximum number of parallel channels is sixteen, or will allow up to sixteen ESCON channels for the unit.

   
   

4. Like EMC, HRS became aware of the error at the deposition taken on May 25, 1994. It views the error as immaterial because none of the eighteen technical criteria in the manual considered by the evaluation committee addressed the number of concurrent I/Os the equipment must be able to accomplish. This is confirmed by the fact that none of the evaluator's

   scoresheets gave material consideration to that matter. Indeed, with the possible exception of subpart C on question 8, no evaluation criterion specifically related to the above language. Even if the EMC-2 proposal was reevaluated and a zero given for question 8, it would not result in a change in the rankings. At the same time, by amending its proposal in this respect, EMC did not obtain an advantage over other vendors since factors not relevant to the technical scoring criteria can not afford a competitive advantage. Given these considerations, it is found that the error in paragraph 4 of Tab 3 is immaterial, and HRS could properly waive this minor irregularity.

   
   

5. Finally, IBM contends that the single EMC model 9100 (5200) was not of equal or superior performance or of equal or greater capacity to two IBM 3990- 006 controllers. The more credible and persuasive evidence supports a finding, however, that the 5200-9 model has eight actual channel capability, it has ESCON channel capability, it has a total potential cache of 272 gigabytes, it is the equivalent of two 3390-A28 DASDs, four 3390-B2C DASDs and two 3390-006 Mod 6s in that it provides the same capabilities and functionalities and the same result to customers as IBM equipment, and thus it satisfies the equivalency requirements of the RFP. Therefore, it is found that the EMC-2 proposal is responsive in all respects to the RFP and that HRS properly ranked that proposal first.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. The scope of inquiry in this proceeding is limited to determining "whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly" in choosing EMC as the successful vendor. See, e. g., Moore v. State, Department of Health and Rehabilitative Services, 596 So.2d 759, 761 (Fla. 1st DCA 1992). Further, the undersigned is required to honor the rule that a public body has "wide discretion" in the bidding process and its decision, when based on an honest exercise of the discretion, should not be overturned "even if it may appear erroneous and even if reasonable persons may disagree." Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982). At the same time, the agency is responsible "for ensuring that the integrity of the competitive bidding process is maintained," Procacci v. State, Department of Health and Rehabilitative Services, 603 S.2d 1299, 1301 (Fla. 1st DCA 1992), and "(t)here is a strong public policy in favor of awarding contracts to the low bidder, and an equally strong public policy against disqualifying the low bidder for the technical deficiencies which do not confer an economic advantage on one bidder over another." Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So.2d 380, 387 (Fla. 3d DCA 1992). Finally, as the party challenging the agency's action, petitioner must prove by a preponderance of the evidence that HRS's decision was inappropriate for one of the reasons cited in Moore.

   
   

8. Citing Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1977), IBM contends that HRS acted in an arbitrary and unlawful manner by treating the changes in the EMC-2 proposal as "minor irregularities" and allowing EMC to modify its proposal after all proposals had been opened. As to this contention, Harry Pepper cites the general proposition that "in order to insure the desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities." Id. at 1192. In determining whether a deviation is a

   minor or material one, the courts have generally applied a test of whether the variation gives the bidder an advantage or benefit not enjoyed by other bidders. See, e. g., Tropabest Foods, Inc. v. State, Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Robinson Electrical Co. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982); Harry Pepper at 1193. In this case, the evidence supports a conclusion that EMC did not gain an advantage over other vendors by changing its proposal in two minor respects. This conclusion is supported by the established facts that (a) EMC changed only the model number and not the technology, and (b) the error regarding the I/Os was not a material consideration in the grading process or a factor in the technical scoring criteria, and it was not the subject of an RFP requirement. Given these considerations, it must be concluded that the two variations were immaterial, did not afford EMC an advantage over the other proposers, and did not affect the integrity of the bidding process. Under the terms of the RFP itself and agency rule 10-13.012, HRS could properly waive these minor irregularities. Therefore, its actions were not arbitrary or illegal. To reach any other conclusion would be contrary to the "strong public policy against disqualifying the (best proposer) for technical deficiencies which do not confer an economic advantage on one (proposer) over another." Intercontinental Properties at 387. The remaining arguments presented by IBM have been considered and found to be without merit.

   
   

9. Because IBM failed to establish that HRS acted fraudulently, arbitrarily, illegally or dishonestly in proposing to award the contract to EMC, its protest should be dismissed with prejudice and the contract should be awarded to EMC, the highest ranking responsive proposer.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent awarding the

contract for RFP 94-10BB-DSD to EMC Corporation and dismissing with prejudice the protest of International Business Machines Corporation, Inc.

DONE AND ENTERED this 16th day of June, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2588BID

Petitioner:

1. Partially accepted in findings of fact 2 and 4.

2. Partially accepted in finding of fact 2.

3. Partially accepted in finding of fact 6.

4. Rejected as being contrary to the more credible and persuasive evidence.

5. Partially accepted in finding of fact 13.

6. Partially accepted in finding of fact 16.

7. Partially accepted in finding of fact 18.

8. Partially accepted in finding of fact 17.

9. Partially accepted in finding of fact 4.

10. Partially accepted in finding of fact 10.

11. Partially accepted in findings of fact 5, 9 and 21. 12-13. Partially accepted in finding of fact 21.

1. Partially accepted in finding of fact 6.

2. Partially accepted in finding of fact 13.

3. Rejected. See findings 22 and 23.

4. Rejected. See findings 9 and 22.

5. Rejected. See findings 22 and 23.

6. Rejected. See findings 6, 8 and 9.

7. Rejected as being irrelevant. See finding 9.

8. Rejected as being contrary to the more credible and persuasive evidence.

9. Partially accepted in finding of fact 13.

10. Rejected as being contrary to the more credible and persuasive evidence.

Respondent:

Intervenor:

1. Partially accepted in finding of fact 2.

2. Partially accepted in finding of fact 5.

3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 15.

1. Rejected as being unnecessary.

2. Partially accepted in finding of fact 14.

3. Partially accepted in finding of fact 3. 9-13. Partially accepted in finding of fact 16. 14-15. Partially accepted in finding of fact 17.

16. Partially accepted in finding of fact 4. 17-19. Partially accepted in finding of fact 18.

1. Partially accepted in finding of fact 4.

2. Partially accepted in findings of fact 6 and 15.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, not supported by the evidence, subordinate, or a conclusion of law.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kimberly J. Tucker, Esquire Building One, Room 407

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Hume F. Coleman, Esquire Post Office Drawer 810

Tallahassee, Florida 32302-0800

Daniel W. Schenck, Esquire 4111 Northside Parkway HO7K2

Atlanta, Georgia 30327

William A. Freider, Esquire Building E, Suite 200

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Terrence J. Russell, Esquire

P. O. Box 1900

Fort Lauderdale, Florida 33302-1900

Margaret-Ray T. Kemper, Esquire

215 South Monroe Street Suite 815

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 94-002588BID

Orders for Case No: 94-002588BID